The Digital Millennium Copyright Act shields a service provider from liability upon certain conditions including the adoption of such a policy. However, both sides debated whether certain MP3Tunes users truly qualified as “repeat infringers.” The trial judge held that only those who are “blatant infringers” are subject to banning, but Lohier agrees with the copyright holders that this doesn’t match with the text, structure or legislative history of the DMCA.

Tuesday’s opinion comes to the view that a definition of “repeat infringer as limited to willful infringement is too narrow,” and that a repeat infringer “does not need to know of the infringing nature of its online activities, or to upload rather than download content.”